Workforce Bulletin

By:  John F. Fullerton III

This is the third in our series of posts on practice and procedure in employment-related arbitrations before FINRA.  Check back often for future posts, subscribe by e-mail (see the sidebar), or follow @FSemployer on Twitter so you don’t miss any updates!

Once upon a time, it was mandatory under Form U4 that registered representatives file any statutory claims of discrimination (such as age, gender, or race discrimination) in arbitration rather than in court.  A well known Supreme Court case decided in 1991, Gilmer v.  Interstate/Johnson Lane Corp.

Our colleague, Hylan Fenster, shares his thoughts on source code escrow agreements:

Despite the burst of the dot.com bubble, many companies, notably small and mid-sized businesses, continue to rely on licensed software to perform their critical business operations. Source code escrow can provide the business with some protection if the software provider faces bankruptcy or stops maintenance or support for the licensed software.

Software License and Escrow Agreements

Licensees should ensure that their contracts with software providers contain provisions protecting source ...

The April issue of “Take 5: Views You Can Use,” written by David W. Garland, a Member of the Firm in Epstein Becker Green’s New York and Newark offices, covers these topics:

1. Employers' Request for Facebook Access Comes Under Attack
2. EEOC Releases Publications on the Rights of Disabled Veterans Returning to the Civilian Workforce
3. EEOC Publishes Rule Amending ADEA Regulations
4. Employers' Use of Unpaid Interns Comes Under Attack
5. Title VII's Protections Extend to Provision of Severance Benefits to Former Employees

Click here to read the April issue of “Take 5.”

Late last year, I delivered a keynote address to the National Grain & Feed Association’s (NGFA) annual Country Elevator Conference regarding:

1. Why it is important for grain handlers to prepare now for an OSHA inspection;
2. What to do now to prepare for an OSHA inspection; and
3. How best to manage an OSHA inspection once it begins.

by Carrie Corcoran, Matthew T. Miklave, and Susan Gross Sholinsky

The U.S. Equal Employment Opportunity Commission ("EEOC") has issued a long-awaited final rule ("Final Rule"), which amends the regulation on the "reasonable factors other than age" ("RFOA") defense available under the Age Discrimination in Employment Act ("ADEA"). The Final Rule is available at 29 C.F.R. Part 1625. The EEOC previously published proposed rules regarding the RFOA defense on March 31, 2008, and then on February 18, 2010. The Final Rule takes into account public comments received on those proposals.

By Kara M. Maciel

Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry.  One of the struggles that employers face is trying to prevent violent conduct by ...

by Carrie Corcoran, Matthew T. Miklave, and Susan Gross Sholinsky

 The U.S. Equal Employment Opportunity Commission ("EEOC") has issued a long-awaited final rule ("Final Rule"), which amends the regulation on the "reasonable factors other than age" ("RFOA") defense available under the Age Discrimination in Employment Act ("ADEA"). The Final Rule is available at 29 C.F.R. Part 1625. The EEOC previously published proposed rules regarding the RFOA defense on March 31, 2008, and then on February 18, 2010. The Final Rule takes into account public comments received on those proposals.

The Administrative Review Board (“ARB”) on March 28, 2012 held that the whistleblower protection provisions of the Consumer Product Safety Improvement Act of 2008 (“CPSIA” or “Act”) are not limited to those who raise concerns only as to a “consumer product” as defined in the Act, but extends to any matter falling within the jurisdiction of the Consumer Product Safety Commission. Saporito v. Publix Super Markets, Inc., ARB Case No. 10-073. The ARB has thereby significantly expanded the number of manufacturers, distributors and retailers whose employees ...

By:  John F. Fullerton III

This is the second in our series of posts on practice and procedure in employment-related arbitrations before FINRA.  Check back often for future posts, subscribe by e-mail (see the sidebar), or follow @FSemployer on Twitter so you don’t miss any updates!

As a general rule, it is more common to read about employers who have been sued in court by a former employee attempting to compel the claims into arbitration than an employer trying to compel arbitration claims to be filed in court.  Yet, under the occasionally overlooked FINRA Rule 13803, employers who ...